Parry v Dunn-Blatch & others: Some fundamental aspects of the oppression remedy under the Companies Act 71 of 2008

by | Oct 11, 2026 | SAMLJ, SAMLJ V38 I1

Parry v Dunn-Blatch & others: Some fundamental aspects of the oppression remedy under the Companies Act 71 of 2008

Author: Maleka Femida Cassim

ISSN: 1996-2185
Affiliations: MBBCh (cum laude) LLB (cum laude) LLM (cum laude) (Wits) Phd (UCT). Attorney and Notary Public of the High Court of South Africa
Source: South African Mercantile Law Journal, Volume 38 Issue 1, 2026, p. 1 – 29
https://doi.org/10.47348/SAMLJ/v38/i1a1

Abstract

The oppression remedy is a flexible mechanism for the protection of non-controlling shareholders and directors. It is a popular remedy invoked by minority shareholders, particularly in smaller companies or quasi-partnership type companies. In Parry v Dunn-Blatch & others (394/2022) [2024] ZASCA 19 (28 February 2024), the Supreme Court of Appeal was confronted with the issue of whether a director and co-shareholder of a quasi-partnership company could rely on the oppression remedy contained in s 163 of the South African Companies Act 71 of 2008 to have the terms of an agreement varied, despite having willingly signed it. This article critically analyses some important aspects of the judgment of the Supreme Court of Appeal in Parry. Relevant legal principles in comparative foreign jurisdictions are also considered, including the United Kingdom, Canada, Australia and New Zealand. First, the concept of ‘unfair prejudice’, which is central to the oppression remedy, is critically analysed. Secondly, the contours of the judicial power to make an order varying or setting aside an agreement in terms of s 163(2)(h) are critically evaluated. Thirdly, aspects of legal standing to invoke the oppression remedy are discussed, including the pertinence of the proper plaintiff rule laid down in Foss v Harbottle and the fundamental, though convoluted, issue of the overlap between the oppression remedy and the derivative action in terms of s 165 of the Companies Act 71 of 2008.

Understatement penalties as a deterrent for impermissible tax avoidance under the South African Tax Administration Act 28 of 2011

by | Oct 11, 2026 | SAMLJ, SAMLJ V38 I1

Understatement penalties as a deterrent for impermissible tax avoidance under the South African Tax Administration Act 28 of 2011

Authors: Dieketsend Damane & Moseki Maleka

ISSN: 1996-2185
Affiliations: Lecturer, Wits Law Clinic, University of the Witwatersrand; Associate Professor, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 38 Issue 1, 2026, p. 30 – 57
https://doi.org/10.47348/SAMLJ/v38/i1a2

Abstract

Chapters 15 and 16 of the Tax Administration Act 28 of 2011 (TAA) house the penalties that encourage tax compliance, including understatement penalties. Section 221 of the TAA was amended by s 61(c) of the Tax Administration Laws Amendment Act 16 of 2016, to include impermissible tax avoidance as a form of an understatement. To date, understatement penalties in respect of impermissible tax avoidance have not yet received sufficient academic or judicial scrutiny. Prior to the amendment of the TAA in 2016, the sanctions for impermissible tax avoidance were found only under s 80B of the Income Tax Act 58 of 1962 (ITA). These sanctions promote a corrective form of deterrence, whereas understatement penalties are both punitive and coercive in nature, and represent a harsher form of sanction. The scrutiny of the severity of understatement penalties regarding impermissible tax avoidance has yet to receive sufficient judicial responsiveness, unlike other categories of understatements. This article critically analyses the efficiency of understatement penalties as a sanction for impermissible tax avoidance, considering the existing General Anti-Avoidance Rules (GAAR) under s 80B of the ITA.

Reconsidering the debate relating to the proposals for the regulation of crypto assets from a South African perspective

by | Oct 11, 2026 | SAMLJ, SAMLJ V38 I1

Reconsidering the debate relating to the proposals for the regulation of crypto assets from a South African perspective

Author: Michaella Alexandrine De Sousa

ISSN: 1996-2185
Affiliations: Lecturer, Supervising Attorney, Wits Law Clinic, School of Law, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 38 Issue 1, 2026, p. 58 – 86
https://doi.org/10.47348/SAMLJ/v38/i1a3

Abstract

Crypto assets are a growing market and do not appear to be the fad that many thought they would be when the first crypto asset, namely Bitcoin, was created in 2008. As such, regulators and interested investors alike continue to debate the need, if any, to regulate crypto assets, considering the development of illicit activities using crypto assets to defraud the public. However, the decentralised nature of crypto assets creates obstacles for regulators due to the anonymity surrounding them. All is not lost for regulators, though; this article aims to illustrate how the basic principles of risk management and corporate governance can be applied to perhaps ensure a future for both crypto assets and fiat currencies to be regulated in one market. Across the globe, jurisdictions have taken different approaches to the issue of crypto assets, with some banning crypto assets and others seeing the true economic potential for crypto asset use by their citizens. In South Africa, the Government has already taken steps to declare crypto assets as financial products; therefore, crypto asset regulation in South Africa has taken a step towards supporting the future use and investment of this growing financial market.

Living on farmland: Examining the right to tenure security for South African farm dwellers

by | Oct 11, 2026 | SAMLJ, SAMLJ V38 I1

Living on farmland: Examining the right to tenure security for South African farm dwellers

Authors: Priviledge Dhliwayo & Nyaradzo DT Karubwa

ISSN: 1996-2185
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand, Johannesburg, South Africa; Family Law Administration Officer, MUFG Pension and Market Services, Melbourne, Australia
Source: South African Mercantile Law Journal, Volume 38 Issue 1, 2026, p. 87 – 106
https://doi.org/10.47348/SAMLJ/v38/i1a4

Abstract

Section 25(6) of the Constitution of the Republic of South Africa, 1996 guarantees legally secure tenure to farm dwellers. The Extension of Security of Tenure Act 62 of 1997 (‘ESTA’) was enacted to give effect to s 25(6), read with s 25(9) of the Constitution. The purpose of ESTA is to improve and strengthen tenure security in rural areas, including farmland. Nonetheless, the efforts to strengthen tenure security have largely failed to guarantee legally secure tenure on farmland. Thirty-two years after the government of South Africa began its all-encompassing land reform programme, the goals it envisioned have not yet been realised. The result is the continuous challenges encountered by farm dwellers. The article discusses the inherent challenges linked with tenure security on farmland, with reference to the government’s responsibility to advance tenure security. In doing so, the article unpacks what the right to tenure security entails in general, and more specifically, what the right means for farm dwellers living on farmland. Clarification of the content of the right to tenure security can help farm dwellers understand their rights at the outset. The article concludes that ESTA does not afford farm dwellers a right to tenure security that provides them with sufficient protection.

Constitutional boundaries of workplace surveillance in the digital age: The right to privacy in the South African workplace

by | Oct 11, 2026 | SAMLJ, SAMLJ V38 I1

Constitutional boundaries of workplace surveillance in the digital age: The right to privacy in the South African workplace

Author: Ntlahla France

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile Law, Faculty of Law, University of Fort Hare
Source: South African Mercantile Law Journal, Volume 38 Issue 1, 2026, p. 107 – 129
https://doi.org/10.47348/SAMLJ/v38/i1a5

Abstract

This paper examines the evolving nature of workplace privacy in the digital age, with special focus on the legal and constitutional challenges presented by electronic surveillance. It examines monitoring tools, including email and internet tracking, as well as biometric identification, which heighten tensions between employees’ constitutional right to privacy and employers’ legitimate interests in productivity, security, and resource management. While s 14 of the Constitution of the Republic of South Africa guarantees the right to privacy, this right is not absolute and may be limited under s 36 of the Constitution to protect legitimate business objectives. The paper highlights how intrusive monitoring, accessing emails, tracking internet use, or collecting biometric data can undermine employee dignity, privacy and trust, while recognising employers’ duties to maintain operational efficiency, prevent misconduct, and protect organisational interests. The paper addresses gaps in existing scholarship, showing how South African law navigates the delicate balance between employee privacy and employer oversight in the context of advanced digital monitoring. Through analysis of case law and statutory frameworks, including the Electronic Communications and Transactions Act 25 of 2002 (ECTA), the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA), and the Protection of Personal Information Act 4 of 2013 (POPIA), the paper advocates for a measured approach that upholds privacy while allowing justified and proportionate monitoring. It recommends transparent workplace monitoring policies, informed consent, and fair procedures to reduce conflict and potential legal challenges. Ultimately, the paper promotes workplace environments that respect constitutional rights while adapting to technological innovation, offering practical guidance for employers and policymakers navigating digital surveillance challenges.

The impact of an equality-based restitutionary measure on non-beneficiaries: A new role for dignity in South Africa workplace affirmative action cases?

by | Oct 11, 2026 | SAMLJ, SAMLJ V38 I1

The impact of an equality-based restitutionary measure on non-beneficiaries: A new role for dignity in South Africa workplace affirmative action cases?

Author: Andre M Louw

ISSN: 1996-2185
Affiliations: Associate Professor, Faculty of Law, Stellenbosch University
Source: South African Mercantile Law Journal, Volume 38 Issue 1, 2026, p. 130 – 155
https://doi.org/10.47348/SAMLJ/v38/i1a6

Abstract

This piece examines the potential impact of affirmative action measures under the Employment Equity Act, 1998 on non-beneficiaries (specifically non-beneficiaries from designated groups). The author examines the potential detrimental impact on the human dignity of such non-beneficiaries and suggests an alternative basis for legal challenges to such measures in appropriate cases. After critically considering the standard of review of affirmative action measures as employed by the Constitutional Court (the Van Heerden test), the author examines the role of dignity in equality cases. The author posits that the substantive right to dignity in s 10 of the Constitution of South Africa, 1996 provides an alternative and less burdensome basis for affected claimants to challenge the legality of restitutionary measures, which would subject such measures to ordinary constitutional scrutiny in terms of the s 36 limitations clause (as opposed to the low standard of rationality review in terms of the Van Heerden test).